A recent change to a Medicare Secondary Payer Manual brings Medicare Set-Asides into play for doctors and other medical service providers, who as of March 24 are obligated to direct bill those trusts. Just a year after Medicare’s Workers’ Compensation Medicare Set-Aside Reference Guide update strenuously emphasized the utility of MSAs in protecting Beneficiary entitlements post settlement, the Centers for Medicare and Medicaid Services now put MSA policy in motion with this recent directive. This change is consistent with Medicare’s WCMSA policy and previous guidance that allocations of future medical expenses should be properly funded and spent down in order to protect entitlements. Previous versions of this Manual illustrated primary insurance as opposed to secondary insurance, but made no specific reference to Medicare Set-Asides.

Paramount to this change is the obligation to identify which Beneficiaries should have a Medicare Set-Aside, which can be accomplished through a series of direct inquiries to the patient as well as a review of the Common Working File for an indicator of a WCMSA’s existence. Medicare added Section 30.2.2.1 to chapter 3 of the Medicare Secondary Payer Manual, which includes the following:

• Specific questions providers must ask every Medicare Beneficiary to determine whether a Medicare Set-Aside exists.
• Details to check the HETS 270/271 response for a “w.” This indication notifies providers that a WCMSA record exists.
• The process for billing Medicare as primary insurance upon Medicare Set-Aside exhaustion.

The MSP Manual can be accessed in its entirety at: R11874MSP | CMS

PRIOR EFFORTS EDUCATIONAL IN NATURE

Although the updates to the MSP Manual introduce Medicare Set-Asides for the first time, providers may have seen this term before. For years, Medicare notified providers of the existence of Medicare Set-Asides via Medicare Learning Network alerts. These newsletters, stating in their letterhead “knowledge, resources, training” are educational resources. Comparatively, the MSP Manual is an operative document for medical providers used to identify instances in which a primary payer exists and how and when to bill primary insurance, and eventually Medicare, if necessary. Legal and regulatory references are laced through processes, providing depth and context, specifically the inclusion of 42 CFR §411.24 which corresponds with Medicare Secondary Payer obligations. Interestingly, Medicare Learning Network alerts notified providers that Medicare Beneficiaries could have Medicare Set-Asides established for liability, auto and no-fault claims, not just workers’ compensation. These additional insurance lines are not alluded to in the MSP Manual, possibly given that no process for MSA review exists for GL or NF. Rulemaking believed to promulgate formality to Liability and No-Fault Medicare Set-Asides was withdrawn from the Office of Information and Regulatory Affairs by CMS as of October 13, 2022, despite several years of discussion and contemplation over what MSAs would mean, particularly to general liability settlements. Currently, CMS has provided no guidance to settling parties about how and when to submit an LMSA or NFMSA to Medicare for review.

                                                                                                                                                              Throughout the years, various stakeholders in the Non-Group Health Plan insurance industry have expressed concerns with formalization of a Medicare Set-Aside review process for liability and no-fault claims. The question of liability for future medical expenses is generally murkier in this arena than workers’ compensation, which has historically been the line of insurance Medicare has focused its efforts toward in terms of a formalized Medicare Set-Aside review program.  

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